Boncoskey v. Boncoskey

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Marriage of: ) ) TIMOTHY L. BONCOSKEY, ) ) Petitioner/Appellant, ) ) v. ) ) LAURA S. BONCOSKEY, ) ) Respondent/Appellee. ) ) ) 1 CA-CV 08-0803 DIVISION ONE FILED: 02/11/2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC 2002-001171 The Honorable Michael D. Gordon, Judge AFFIRMED IN PART; VACATED IN PART AND REMANDED Bill Stephens, PC By Bill Stephens Attorneys for Petitioner/Appellant Phoenix Law Offices of Robert E. Siesco By Robert E. Siesco Attorneys for Respondent/Appellee Phoenix G E M M I L L, Judge ¶1 Timothy L. Boncoskey ( Husband ) appeals from an Amended Domestic Relations Order ( ADRO ) concerning his pension plan. Specifically, Husband contests the valuation method used and the order for him to elect a joint and survivor annuity naming his ex-wife, annuitant. Laura Boncoskey ( Wife ), as contingent For the following reasons, we affirm in part, vacate in part, and remand for further proceedings. FACTS AND PROCEDURAL BACKGROUND ¶2 This is Husband s second appeal in this case, having previously appealed entered in 2006. opinion vacating proceedings. from a Domestic Relations Order ( DRO ) On September 25, 2007, this court issued an the DRO and remanding for additional Boncoskey v. Boncoskey, 216 Ariz. 448, 454, ¶ 29, 167 P.3d 705, 711 (App. 2007). ADRO entered on remand. This appeal results from the All of the underlying facts are set forth in our previous opinion. However, to the extent the facts are relevant on appeal, we recite them again. ¶3 Husband and Wife were divorced in 2003, when Husband was forty years old. State of Arizona Id. at ¶¶ 1, 3. and participates Husband works for the in the Arizona State Retirement System ( ASRS ), entitling him to a monthly pension benefit upon retirement. Id. at ¶ 3. During the marriage, Husband was employed with the State for 12.5 years. 2 Id. The pension is a defined benefit plan that pays retired employees a monthly pension based upon a formula, usually related to the employee s years of service and average salary. Id. (citations omitted); see Arizona Revised Statutes ( A.R.S. ) section 38712(B) (2001). Husband s pension rights do not mature until he is 54 years old.1 708; A.R.S. (2001). § Boncoskey, 216 Ariz. at 451, ¶ 16, 167 P.3d at 38-711(27) (Supp. 2009); A.R.S. § 38-740(A) Upon dissolution, the parties agreed each was entitled to one-half of the community interest in the pension which was to be divided by a Qualified Domestic Relations Order ( QDRO ). Boncoskey, 216 Ariz. at 449, ¶ 6, 167 P.3d at 708. ¶4 The superior special master. court Id. at ¶ 9. signed a DRO prepared by the In the DRO, Husband was ordered to pay $530 per month to Wife when he attained age 50 because he was eligible to retire at that age. Id. at ¶¶ 7, 9. Koelsch, 1234 148 authority. Ariz. 176, 713 P.2d (1986), was Koelsch v. cited as Boncoskey, 216 Ariz. at 450, ¶ 7, 167 P.3d at 707. Additionally, the DRO required Husband to elect a joint and survivor 50% annuity beneficiary thereof. ¶5 29. benefit and to name Wife as sole Id. at ¶ 27. On appeal, we vacated the entire DRO. Id. at ¶¶ 28- First, we determined Koelsch did not apply and instead, 1 A pension right has matured when an employee is eligible to an unconditional right to immediate payment. Boncoskey, 216 Ariz. at 451-52, ¶¶ 15-16, 167 P.3d at 708-09. 3 Johnson v. Johnson, controlled. 131 Ariz. 38, 638 P.2d 705 (1981), Boncoskey, 216 Ariz. at 451-53, ¶¶ 16-18, 21, 167 P.3d at 708-10. Second, we examined the reserved jurisdiction method time and formula). the formula Id. at ¶¶ 14-18. (also known as the Van Loan Finally, we found the required joint and survivor annuity improperly awarded Wife more than her share of the community interest in the pension. Id. at ¶ 28. Accordingly, we remanded the case to the superior court. Id. at ¶¶ 28, 29. ¶6 On remand, Husband lodged a proposed QDRO. In that QDRO, Husband valued the pension based on the formula set forth in A.R.S. § 38-757(B) (Supp. 2009).2 valuation method in the proposed QDRO. Wife objected to the On March 25, 2008, after oral argument, the court ruled: Wife s position prevails and the Domestic Relations Order for the Arizona State Retirement benefits should be handled through the traditional numerator denominator calculation, using Van Loan and Johnson. . . . IT IS FURTHER ORDERED that Wife is free to pick the survivor benefit that she wishes as long as she pays for the costs of the benefits and the Court shall sign the QDRO that incorporates those provisions. ¶7 The matter was subsequently assigned to a new judge. 2 In Husband s objections to the original DRO, he proposed using the same valuation method. 4 Wife lodged a proposed ADRO to which Husband objected. In the ADRO, Wife used the time formula for valuation and elected a joint and survivor 50% annuity. found the March disturb it. Husband 25 minute After oral argument, the court entry controlled and refused to Accordingly, the court signed the ADRO as proposed. timely appealed. We have jurisdiction pursuant to apportionment of A.R.S. § 12-2101(C) (2003). DISCUSSION I. Standard of Review ¶8 We review the superior court s community property for an abuse of discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5, 972 P.2d 676, 679 (App. 1998). A court abuses its discretion if it misapplies the law or otherwise exercises its discretion on untenable grounds. See Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App. 2004); Woodworth v. Woodworth, 202 Ariz. 179, 183, ¶ 23, 42 P.3d 610, 614 (App. 2002). We consider the evidence in the light most favorable to sustaining the superior court s decision and will uphold the decision if any evidence reasonably supports it. Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2, 118 P.3d 621, 622 (App. 2005). II. ¶9 Valuation Husband challenges the use of the time formula in the ADRO to value his pension. As explained in Boncoskey, under the 5 time formula, the community share of a pension is obtained by dividing the length of time worked during the marriage by the total length of time worked toward earning the pension. Boncoskey, 216 Ariz. at 452, ¶ 18, 167 P.3d at 709 (quoting Johnson, 131 Ariz. at 41 n.4, 638 P.2d at 708 n.4). Each future pension payment is multiplied by that figure to determine the portion of the payment constituting community property. Johnson, 131 Ariz. at 41 n.5, 638 P.2d at 708 n.5. ¶10 Husband maintains a more accurate way to value his pension is by application of A.R.S. § 38-757(B). Section 38- 757(B) provides: [A] member[3] who meets the requirements for retirement benefits at normal retirement shall receive a monthly life annuity that equals the result of paragraph 1 multiplied by paragraph 2 when those paragraphs are defined as follows: 1. The number of whole and fractional years of credited service times the following: (a) 2.10 per cent if the member does not have more than 19.99 years of credited service. (b) 2.15 per cent if the member has at least 20.00 years of credited service but not more than 24.99 years of credited service. 3 A member is defined as an employee of the state or a participating political subdivision of the state or any person receiving a benefit under the ASRS. A.R.S. § 38-711(23),(13). 6 (c) 2.20 per cent if the member has at least 25.00 years of credited service but not more than 29.99 years of credited service. (d) 2.30 per cent if the member has at least 30.00 years of credited service. 2. The member s compensation. A.R.S. § 38-757(B). defined as the contributions monthly A member s average monthly compensation is monthly were average average remitted of during compensation a period of on which thirty-six consecutive months during which a member receives the highest compensation credited within the service. last A.R.S. one hundred twenty 38-711(5)(b).4 § months Husband of argues applying this formula based on facts existing at the time of dissolution results in a more accurate value than the time formula.5 ¶11 Arizona has identified two methods unmatured benefits in a retirement plan: of apportioning the present cash value method and the reserved jurisdiction method. Hetherington v. Hetherington, 220 Ariz. 16, 19, ¶ 9, 202 P.3d 481, 484 (App. 2008) (citing Johnson, 131 Ariz. at 41, 638 P.2d at 708). The 4 We cite to the current version of A.R.S. § 38-711 because no material changes relevant to this case have been made. 5 Husband proposes paragraph 1 being 12.5 (years of marriage) times subparagraph (a) (2.10), and multiplying that result by his monthly compensation as of the date the community interest terminated, February 7, 2002. 7 present cash value method is a lump-sum distribution for which the court actuarially of the Johnson, 131 Ariz. at 41, 638 P.2d at 708. pension plan. determines the present value In determining the plan s present value, the court must consider various contingencies such as mortality, interest, probability of vesting, probability of continued employment, and the like. Miller v. Miller, 140 Ariz. 520, 523, 683 P.2d 319, 322 (App. 1984). After determining the value, the court awards one-half of the present value to the non-employee spouse, often in the form of equivalent property. at 708. Johnson, 131 Ariz. at 41, 638 P.2d The present cash value method is the preferred method of distribution if the plan can be accurately valued and if the marital estate includes sufficient equivalent satisfy the claim of the non-employee spouse. property to Id. at 42, 638 P.2d at 709. ¶12 The reserved jurisdiction method allows a court to determine a formula for division at the time of the decree, but delays division until the participant spouse begins receiving payment. Id. at 41, 638 P.2d at 708; see also Boncoskey, 216 Ariz. at 452, ¶ 18, 167 P.3d at 709 (explaining division of pension payments occurs if, as, and when the pension is paid out. ) (citation omitted). It is within the court s discretion to apply the formula it deems appropriate. See Woodward v. Woodward, 117 Ariz. 148, 150, 571 P.2d 294, 296 (App. 1977) 8 (noting there may be more than one method or formula a court can use to divide a pension plan). Here, the superior court used the reserved jurisdiction method and the time formula. ¶13 Husband is seeking to value his pension as of the date of dissolution, but to award Wife her share of the pension in the future. Essentially, Husband is combining the present cash value method and the reserved jurisdiction method into a third method of division he has created. Husband cites no appellate decision supporting this division method. If Husband s pension was being distributed pursuant to the present cash value method, a determination of the pension s value as of the date of dissolution would be appropriate and the court could have opted to value the pension pursuant to A.R.S. § 38-757(B). the present cash value method cannot be used in However, this case because there were no community assets that remained unallocated when the original DRO (and the ADRO) was entered. See Boncoskey, 216 Ariz. at 452, ¶ 17, 167 P.3d at 709 (explaining the present cash value cannot be used if no community assets remain unallocated when a DRO is entered) (citing Johnson, 131 Ariz. at 41-42, 638 P.2d at 708-09). Further, as Wife mentions, she is being compelled to wait until the pension is paid out to receive her portion. Husband s proposed division does comply with either approved division method in Arizona. superior court s division employs 9 the approved not The reserved jurisdiction method. We expressly approved the reserved jurisdiction method and the time formula in Boncoskey, 216 Ariz. at 453, ¶ 21, 167 P.3d at 710. ¶14 statutory Nevertheless, Husband argues the only variables in the formula increases, are neither years of service of which Wife is and potential entitled to salary share in. However, when the number of years served by an employee is a substantial factor in determining the benefits such employee will receive, the community is entitled to have its share based upon length of service performed on behalf of the community in proportion to the total length of service necessary to earn those benefits. Cooper v. Cooper, 167 Ariz. 482, 490, 808 P.2d 1234, 1242 (App. 1990) (emphasis added). Even if the present cash value method had been used, such value must be determined according to the retirement. amount anticipated to be payable at normal Id. at 489, 808 P.2d at 1241 (emphasis added). Thus, if Husband s pension amount increases due to additional years of service after dissolution, the value must take such factor into account. Because the number of years served by Husband is relevant to determine the amount of his retirement benefits, the time formula is an appropriate method to value Husband s pension. ¶15 Further, in Boncoskey we favorably cited In re Marriage of Lehman, 955 P.2d 451 (Cal. 1998), which dealt with 10 the same variables as in the present case. Boncoskey, 216 Ariz. at 452 n.6, ¶ 18, 167 P.3d at 709 n.6. In Lehman, the California Supreme Court discussed enhancements, or increases to a retirement plan, due to additional years of service and salary increases after dissolution. Lehman, 955 P.2d at 459-62. Like Cooper, the court found use of the time formula reasonable when the amount of retirement benefits was substantially related to years of service. Lehman, 955 P.2d at 461. Additionally, like the present case, the benefits at issue in Lehman were a product of years of service, final compensation, and a per-service year multiplier. result of Id. the The Lehman court specifically determined the time [formula] is not unreasonable when the relative contributions of the community and separate estates are accounted for. Id. (citation omitted). time into formula community in takes the account numerator and the Here, use of the contributions separate property of the in the denominator. ¶16 Husband argues the time formula is not the appropriate method for valuation in this case, but is appropriate for other plans in which the value cannot be calculated until the employee retires. He distinguishes his pension plan because the exact amount resulting from community efforts can be calculated at any point in time under the statutory formula. irrelevant whether Husband s pension 11 can Nonetheless, it is be computed at any point in time because Husband has not employed an approved division method in his proposed distribution of his pension. See supra ¶ 13. ¶17 Moreover, the case law Husband cites is inapplicable and distinguishable. See Boncoskey, 216 Ariz. at 453, ¶ 21, 167 P.3d at 710 (stating Koelsch does not apply); see also Cooper, 167 Ariz. at 488-89, 808 P.2d 1240-41 (distinguishing Koelsch). In Harris v. Harris, 195 Ariz. 559, 560, ¶ 2, 991 P.2d 262, 263 (App. 1999), husband and wife agreed wife would be awarded onehalf of husband s payments. After military pension dissolution, excluding husband his sought and disability obtained a higher disability rating, increasing his disability benefits and decreasing his non-disability retirement payments. Id. at ¶ 3. We determined that a former spouse should not be allowed to unilaterally transform retirement benefits after from community property to separate property. dissolution Id. at ¶ 13; see also In re Marriage of Gaddis, 191 Ariz. 467, 469, 957 P.2d 1010, 1012 (App. 1997) (finding the value of wife s community interest in husband s pension could not be altered after dissolution because it was distributed by the court and vested in the wife as of the date of dissolution). The present case is distinguishable husband unilaterally from Harris transformed because the post-dissolution in benefits Harris from community property to separate property, thereby depriving wife 12 of benefits. ¶18 The superior court method and the time formula. used the reserved jurisdiction We expressly approved the time formula in Boncoskey, and the superior court did not abuse its discretion by using that formula. Accordingly, we affirm the valuation method of Husband s pension in the ADRO. III. Survivor Benefit ¶19 Husband challenges the superior court s order requiring him to elect a joint and survivor 50% annuity naming Wife as contingent annuitant. The superior court allowed Wife to choose the survivor benefit she wanted as long as she paid the costs of the benefit. Wife chose the joint and survivor 50% annuity. ¶20 Generally, when a member of the ASRS retires, the member receives his or her retirement benefits on a monthly basis until the member dies. 2009). See A.R.S. § 38-764(A), (B) (Supp. However, a member may elect certain survivor options including a joint and survivor annuity, a period certain life annuity, or a (Supp. 2009). lump sum payment. A.R.S. § 38-760(B)(1)-(3) By electing a survivor option, a member will receive reduced retirement benefits during his or her lifetime, but upon the member s death the benefits will continue to be paid to a designated person, if that person survives the member. Id. The joint and survivor annuity allows a member to name a 13 contingent annuitant to receive all, two-thirds, or one-half of the retirement income after the member s death and for the contingent annuitant s life. A.R.S. § 38-760(B)(1); see also A.R.S. contingent § 38-711(8) (defining annuitant as the person named by a member to receive retirement income payable following a member s death ). A member may only name contingent annuitant, but such designation is revocable. one A.R.S. § 38-760(B)(1)(a)-(e). ¶21 In the first DRO, Husband was also required to choose the joint and survivor 50% annuity, with Wife paying the costs of the election. appeal. This requirement was an issue in the first In Boncoskey, we stated: Husband finally asserts that the superior court improperly required him to elect a joint and survivor annuity and to name Wife as the sole beneficiary. [footnote omitted]. He contends that the court exceeded its authority by ordering him to elect the joint and survivor annuity because . . . such an election improperly would allow Wife to share in Husband s postdissolution separate property earnings. . . . Wife has cited no authority supporting the court s order that Husband must choose a joint and survivor annuity naming Wife . . . . [I]f Wife were to receive a 50% survivor annuity, she would receive the entire survivor benefit, including portions that had accrued after dissolution and Husband s remarriage and in which a second wife presumably would have a community interest. Because this aspect of the DRO has the effect of awarding Wife more than her share of the community interest in Husband s 14 pension, we vacate the DRO in toto . . . . 216 Ariz. at 454, ¶¶ 27-28, 167 P.3d at 711. ¶22 The law of the case doctrine is a policy rule which provides that once an appellate court rules on a legal issue in a case, that decision is the law of the case throughout the remaining proceedings. Dancing Sunshines Lounge Comm n, 149 Ariz. 480, 482, 720 P.2d 81, 83 (1986). v. Indus. The law of the case controls subsequent proceedings in the same case if the facts, issues, and evidence do not change. Aida Renta Trust v. Maricopa County, 221 Ariz. 603, 614, ¶ 38, 212 P.3d 941, 952 (App. 2009). ¶23 Here, the law of the case states Husband required to elect a joint and survivor 50% annuity. 216 Ariz. at 454, ¶ 28, 167 P.3d at 711. previously decided.6 evidence exceptions were Id. introduced precluding is not Boncoskey, This exact issue was Further, Wife concedes no new facts or on remand. application of However, the law of there the are case, including a change in applicable law or an error in the previous decision. Dancing Sunshines Lounge, 149 Ariz. at 482-83, 720 6 We note, however, the law of the case does not apply to the valuation issue raised in this appeal because that exact issue was not previously decided in Boncoskey. The relevant issues in Boncoskey were whether the superior court had authority to order Husband to make payments to Wife beginning on his 50th birthday and the classification of those payments as spousal maintenance. Boncoskey, 216 Ariz. at 453, ¶¶ 21-24, 167 P.3d at 710. In the present appeal, the issue concerns the valuation of Husband s pension. 15 P.2d at 83-84. was amended materially Although the relevant statute, A.R.S. § 38-760, effective change the July 1, statute 2008, as said relevant amendment to this did not decision. Therefore, the only circumstance under which we could conclude the law of the case does not apply is if the previous decision was erroneous. ¶24 We find no error. Wife argues the superior court s order in the ADRO was appropriate and cites several cases for support. find her case law distinguishable. However, we First, in In re Marriage of Lowell, 171 Ariz. 462, 462-63, 831 P.2d 838, 838-39 (App. 1991), when husband and wife divorced, husband had already retired from his federal civil service position and elected a reduced pension with a survivorship benefit. The court held there was nothing improper about awarding wife the survivorship benefit because the benefit funds. had been paid for overwhelmingly Id. at 463, 831 P.2d at 839. by community Here, Husband is still working, does not plan on retiring for many years,7 and has not elected a survivorship benefit. Further, if we assume Husband will retire at age 67 and will accumulate a total of 39 years in the ASRS, marriage. years and only 12.5 years would have accrued during the This is less than one third of the total anticipated the retirement benefit 7 will not be paid for According to Boncoskey, Husband does not intend to retire until he is approximately 67 years old. Boncoskey, 216 Ariz. at 451, ¶ 16, 167 P.3d at 708. 16 overwhelmingly by community funds as in Lowell. ¶25 Similarly, Parada v. Parada, 196 Ariz. 428, 999 P.2d 184, (2000), is distinguishable. The husband in Parada already retired when his first marriage was dissolved. 2. had Id. at ¶ Wife collected one-half of husband s retirement payments pursuant to the divorce decree. Id. at ¶ 10. When husband died, his second wife (surviving spouse) received all of the retirement payments. statute, death Id. at ¶ 5. benefits surviving spouse. were to Pursuant to the relevant be paid to an employee s Id. at ¶ 18 (citing A.R.S. § 38-846). An employee could not designate a beneficiary, and thus could not control who receives death benefits. Id. at ¶¶ 18-19. first wife was unable to receive any death benefits. 25. Thus, Id. at ¶ We do not believe that Parada controls the issues in the present case. ¶26 Finally, in Carpenter v. Carpenter, 150 Ariz. 62, 63, 722 P.2d 230, 231 (1986), the court addressed whether husband s first wife had a community property interest in husband s ASRS death benefit. from the There, husband s retirement plan was omitted dissolution decree. Id. Husband approximately three months before his death. P.2d at 230. remarried Id. at 62, 722 The court concluded first wife had a community interest in husband s pension and awarded first wife one-half of the undisputed value of husband s pension as of the date of 17 dissolution to be paid from the death benefits. Id. at 65, 722 P.2d at 233. ¶27 There are some notable distinctions between Carpenter and the present case. First, in Carpenter, husband s retirement plan was an omitted asset and the relevant issue was whether former wife had a community benefits actually paid. is undisputed Wife property interest in the Id. at 63, 722 P.2d at 231. has a community property death Here, it interest in Husband s retirement plan and the plan was not an omitted asset. Second, the husband in Carpenter had passed away when this issue arose. Id. at 62, 722 P.2d at 230. Carpenter was receiving husband s retirement her plan exact from community value was undisputed. the Third, the first wife in community death interest benefits as in the Here, if Husband is required to elect Wife as contingent annuitant, she would receive one-half of Husband s entire retirement payments, which might constitute more than her share of the community property and include a portion of Husband s separate property. 454, ¶ 28, 167 P.3d at 711. Boncoskey, 216 Ariz. at Finally, husband in Carpenter was not required to elect a particular survivor benefit for first wife and first wife was able to receive her community interest through the paid death benefits. 18 Therefore, we find Wife s case law distinguishable.8 ¶28 As stated in our previous decision, the parties settlement agreement did not require Husband to elect a joint and survivor annuity, and requiring Husband to elect such an option may allow Wife to share in Husband s post-dissolution separate property. at 711. Boncoskey, 216 Ariz. at 454, ¶ 28, 167 P.3d There was no error in the Boncoskey opinion, nor has the law changed to render the opinion erroneous. This is the law of the case, and therefore this requirement in the ADRO was an abuse of discretion. Accordingly, we vacate this portion of the ADRO. ¶29 potential We recognize situation of there remains Husband an issue predeceasing regarding Wife after the he retires, but prior to Wife receiving her full share of Husband s 8 Similarly, although In re Marriage of Smith, 56 Cal. Rptr. 3d 341 (Cal. Ct. App. 2007) is more on point, we decline to reverse the law of the case based on Smith. First, Smith was decided on March 23, 2007, six months prior to Boncoskey. Second, out of state cases, though potentially persuasive, are not controlling. See, e.g., State ex rel. Vivian v. Heritage Shutters, Inc., 23 Ariz. App. 544, 545, 534 P.2d 758, 759 (1975). Finally, Smith is distinguishable because California courts are specifically authorized to make an order requiring a party to elect a survivor benefit annuity . . . for the benefit of the other party, as specified by the court, in any case in which a retirement plan provides for such an election. Smith, 56 Cal. Rptr. 3d at 348 (quoting Cal. Fam. Code § 2610(a)(2)). The Arizona Rules of Family Law Procedure contain no similar provision. 19 pension.9 Therefore, we remand this issue to the superior court with instructions to fashion an appropriate order designed to provide Wife her full share of the pension should this situation arise. The superior court may consider ordering Husband to purchase a life insurance policy for Wife s benefit with the costs of such policy Husband and Wife. survivor option, beneficiary, being appropriately apportioned between Alternatively, if Husband chooses to elect a he or should contingent be required annuitant, to name and Wife under as a such circumstance, Wife must be ordered to pay all amounts received in excess of her community share to a beneficiary of Husband s choosing.10 These options are merely suggestions for the superior court to consider on remand and not limitations. The superior court should be creative and flexible to balance both parties interests. 1243. Koelsch, 148 Ariz. at 185, 713 P.2d at We encourage Husband and Wife to present ideas to the superior court as well. IV. ¶30 Attorneys Fees Wife requests attorneys fees on appeal pursuant to A.R.S. § 25-324 (Supp. 2009) and Husband requests attorneys 9 The ADRO specifically provides for the contingency if Husband predeceases Wife prior to retirement. 10 Such a requirement would not conflict with the law of the case because the election will be at Husband s option and it ensures Wife will receive no more than her community property interest in Husband s pension. 20 fees on appeal pursuant to A.R.S. § 12-349(A) (2003). After considering the statutory factors and in the exercise of our discretion, we decline to award fees on appeal to either party. CONCLUSION ¶31 For the foregoing reasons, we affirm the valuation formula in the ADRO, but vacate the requirement that Husband choose a joint and survivor annuity, and remand for further proceedings consistent with this decision. ______/s/_________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ____/s/__________________________ JON W. THOMPSON, Judge ____/s/__________________________ PATRICK IRVINE, Judge 21

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